Você está na página 1de 11







V. VI.


Page 1 of 10


To study the amendments in part IV of our Indian constitution i.e. 42nd amendments dealing with Protection and improvement of environment and safeguarding of forests and wild life in article 48-A. Article 45, which ensures Provision for free and compulsory education for children, was added by the 86th Amendment Act, 2002. To examine the social action litigation process and judicial restraint in India and the validity of Gandhian principles in the present India. To scrutinise article 50 which talks about independence of judiciary from executive and the village administration in India khap panchayats in north India and katta panchayats in south India and the related article 40 to it. To analyse the measures taken by judiciary and government to implement directive principle of state policy, the State has made many efforts to implement the Directive Principles. The Programme of Universalisation of Elementary Education and the five year plans has been accorded the highest priority in order to provide free education to all children up to the age of 14 years. The 86th constitutional amendment of 2002 inserted a new article, Article 21-A, into the Constitution, that seeks to provide free and compulsory education to all children aged 6 to 14 years. Welfare schemes for the weaker sections are being implemented both by the Central and state governments. These include programmes such as boy's and girl's hostels for scheduled classs or scheduled tribes students. The year 1990-1991 was declared as the "Year of Social Justice" in the memory of B.R Ambedkar.

Page 2 of 10

I. INTRODUCTION Directive principles of state policy have created and overseen the evolution of public interest litigation in India. Directive principles of state policy present a strong defence for public interest litigation model as an instrument for the delivery of fair and equitable justice, resistant to governmental apathy as well as economic and social privilege. The concept of PIL is in consonance with the objects enshrined in article 39A of the constitution to protect and deliver prompt social justice with the help of law. It provides an account of the evolution of Indias constitutional courts, and particularly the Supreme Courts, role prior to the emergence of public interest litigation. It discusses the nomenclature of social action litigation and characterizes its evolution as unique and indigenous, distinguishable from the practice of public interest law in the United States of America. The obstacles faced by this radical new form of preserving social and economic rights are also examined. Supreme Courts approach to increasing access to justice and overcoming these impediments, especially through procedural innovations such as broadened locus standi and non adversarial, investigative proceedings using court appointed investigative commissions and amicus curiae. Even as it recognizes the possibility of misuse of social action litigation, it concludes with a strident defence of judicial activism and of social action litigation as a means for bringing the promise of justice to the ordinary and disempowered. Blessed are they who hunger and thirst for justice, for they Shall have their fill. The Eight Beatitudes, the Bible

Directive principles can be a clear statement of social revolution. It helps a country like India to be a welfare state and not merely a police state. Judicial process has a very deep link into it. The inclusion of such instruction proposed that whoever captures power will not be free to do whatever he likes with it, he cannot ignore them and shall have to answer for their breach in court of law. But he will certainly have to answer before the electorate at election time.

The Indian judiciary, especially at the level of the Supreme Court and the High Courts, has for long been concerned with the concept and practice of justice. What constitutes justice and for whom? How do we truly achieve the laudable constitutional precepts that no one is above the law and that all persons are entitled to the equal protection of the law? How do we cope with the problem that in principle, all persons are equal under the law but in reality, some are more equal than others? One of the key features for attaining true justice is by freeing judiciary from the influence of executive and legislature which is the basic structure of the constitution (article 50). Separation of judiciary from executive: The framers of the Constitution did not and could not have meant by a "judicial office" which did not exist independently and the duties or part of the duties of which could be conferred on any person whether trained or not in the administration of justice. The Directive Principles as enshrined in Article 50 of the Constitution, give a mandate that the State shall take steps to separate the judiciary from the executive which means that there shall be aseparate judicial service free from the executive control. Chapters V and VI in part VI of the Constitution provide for the High Courts and subordinate courts in the State. The scheme under the
Page 3 of 10

Constitution for establishing an independent judiciary is very clear. The Constitution-scheme, therefore, only permits members of the judicial service as constituted in terms of Article 236(b) of the Constitution to be considered for the post of District judge and that of the High Court Judge. Directive principles of state policy were also framed keeping in mind local administration and people, in a country like India where most of the people in 1950s as well as in 21st century still depend on agriculture judicial process should be very smooth and transparent in village panchayats were most of the people are not aware of their rights. Framers of our constitution by adding article 40 which advocates for organisation of village panchayats according to which state shall take steps organise village panchayats and them with such powers and authority as may be necessary to enable them to function as units of self government. Thus, the areas concerns for judiciary in directive principles of state policy are: Social action litigation (article 39A) Separation of judiciary from executive (article 50) Uniform code for citizens (article 44) Socio-economic justice (article 38) Gandhian principles (article 40 and 47) II. JUDICIARY WITH SOCIAL WELFARE Social welfare comes from the satisfaction of the public; we can relate social welfare to Benthams theory of maximum happiness. What is Justice? It can have different meaning for different people but the most common answer is satisfaction, if the individual or the masses get satisfied from decision made by judiciary they feel that they have got justice. Beginning with the first few instances in the late-1970s, the category of Public Interest Litigation (PIL) has come to be associated with its own people-friendly procedures. The foremost change came in the form of the dilution of the requirement of locus standi for initiating proceedings. Since the intent was to improve access to justice for those who were otherwise too poor to move the courts or were unaware of their legal entitlements, the Court allowed actions to be brought on their behalf by social activists and lawyers1. In numerous instances, the Court took suo moto cognizance of matters involving the abuse of prisoners, bonded labourers and inmates of mental institutions, through letters addressed to sitting judges. This practice of initiating proceedings on the basis of letters has now been streamlined and has come to be described as epistolary jurisdiction. Public Interest Litigation (PIL), the nature of proceedings itself does not exactly fit into the accepted common-law framework of adversarial litigation. The courtroom dynamics are substantially different from ordinary civil or criminal appeals. While an adversarial environment may prevail in cases where actions are brought to highlight administrative apathy or the governments condonation of abusive practices, in most public interest related litigation, the judges take on a far more active role in the literal sense as well by posing questions to the parties as well as exploring solutions. Especially in actions seeking directions for ensuring governmental accountability or environmental protection, the orientation of the proceedings is usually more akin to collective problem-solving rather than an acrimonious contest between the counsels. Since these matters are filed straightaway at the level of the

Refer: Susan D. Susman, Distant voices in the Courts of India: Transformation of standing in Page 4 of 10

Public Interest Litigation, 13 Wisconsin International Law Journal 57 (Fall 1994)

Supreme Court or the High Court, the parties do not have a meaningful opportunity to present evidence on record before the start of the court proceeding. To overcome this problem, our Courts have developed the practice of appointing fact-finding commissions on a case bycase basis which are deputed to inquire into the subject-matter of the case and report back to the Court. These commissions usually consist of experts in the concerned fields or practicing lawyers. In matters involving complex legal considerations, the Courts also seek the services of senior counsels by appointing them as amicus curiae on a case-by-case basis.2 One of the earliest cases of public interest litigation was reported as Hussainara Khatoon v. State of Bihar3. This case was concerned with a series of articles published in a prominent newspaper - the Indian Express which exposed the plight of under trial prisoners in the state of Bihar. A writ petition was filed by an advocate drawing the Courts attention to the deplorable plight of these prisoners. Many of them had been in jail for longer periods than the maximum permissible sentences for the offences they had been charged with. The Supreme Court accepted the locus standi of the advocate to maintain the writ petition. Thereafter, a series of cases followed in which the Court gave directions through which the right to speedy trial was deemed to be an integral and an essential part of the protection of life and personal liberty. It needs to be recognized that there will inevitably be opposition from affected quarters to the strategy of social action litigation. Such criticism may be blatant or subtler4. They may come from expected quarters or unexpected ones including from within the judiciary itself. An example of this may be seen in the judgement of a two-judge bench of the Supreme Court speaking through Katju, J.while setting aside a High Court judgement (which had directed the State to regularize the plaintiff gardener as a truck driver since he had been working in that capacity for the past 10 years)5. The two-judge bench then went on to make gratuitous comments on the role of the judiciary and on the supposed limitations of public interest litigation in India. These were questions not arising for determination in that case. As long as forty years ago, the Supreme Court rightly prescribed that, Obiter observations and discussion of problems not directly involved in any proceeding should be avoided by courts in dealing with all matters brought before them, but this requirement becomes almost compulsive when the Court is dealing with constitutional matters. Blithely ignoring this sound directive, the two-judge bench went on to pronounce upon the supposed limitations of public interest litigation. Even worse, the two-judge bench went on to criticize two judgements delivered by a three-judge bench (in Jagadambika Pals case of 19986, and the Jharkhand Assembly case of 20057) calling those judgments glaring examples of deviations from the clearly provided constitutional scheme of separation of powers. This strain of criticism of judicial activism as articulated in judgement of Katju, J., as such is untenable. Courts have been consistent in granting relief in social action litigation cases relating to labour, to victims of custodial violence, and to victims of the excesses committed by the

Ashok H. Desai & S. Muralidhar, Public Interest Litigation: Potential and Problems in B.N. Kirpal et. al. (eds.), Supreme but not Infallible (OUP, 2000) 159-192, at p. 164-167

(1980) 1 SCC 81; See Upendra Baxi, The Supreme Court under trial: Under trials and the

Supreme Court, (1980) Supreme Court Cases (Journal section), at p. 35 4 Balakrishnan Rajagopal, Pro-Human Rights but Anti-poor? A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective, 18 (3) Human Rights Rev. 157 (2007). 5 Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683. Rajindar Sachar, Judicial Power - No Tinkering Please, 199 Asian Centre for Human Rights (ACHR) Weekly Review 1 (2007). 6 Jagdambika Pal V. Union of India (1999) 9 SSC 95 7 Jharkhand Party v. State of Jharkhand, (2005) 2 BLJR 1559.

Page 5 of 10

executive. Since previously the targets of the Courts orders were comparatively junior officials, and certainly not prominent politicians, the issue of judicial activism were not raised by the executive. The present charge of alleged interference by the courts has only now begun to emerge, as those who wield political and economic power are beginning to be threatened by the impact of social action litigation8. In this context, Justice Sachar maintains that: It will thus be amply clear that the judiciary (barring some rare escapades) as mentioned in the two-judge judgment is aware of its precise role in the constitutional set up. So when seemingly interested people, mostly politicians, accuse it of overstepping its constitutional limits, the anger is borne more out of frustration at their own partisan actions being challenged before the judiciary rather than the usurpation of power and jurisdiction by the courts.

III. SOCOIALIST PRINCIPLE AND JUDICIARY Socio-economic rights exist with deep dilemmas and live a life of contradictions. On the one hand, the states support socio-economic rights and ostensibly give them equal status and on the other hand, they fail to constitutionally entrench those rights. One reason behind this non entrenchment is the economic rationale that pleads lack of resources. The other and more striking reason is that in the political theory rooted in principles of enlightenment (that the individuals primary need is for liberty ) the concept of rights serves only a two-fold purpose to legitimate government and to control it. Thus, welfare rights/socio-economic rights featured as mere moral precepts and the poor had no right to be free from want (and) the purposes of government were police and safeguard, not to feed and clothe and house. The difference between classical liberty rights and socio-economic rights is that liberty rights reflect an individualist political philosophy, that prizes freedom and welfare rights, acommunitarian or collectivist one that is willing to sacrifice freedom. This distinctness is also described as difference between freedom from (interference by others) and freedom to (various things regarded as necessities), wherein the obligation to supply those things is distributed among all tax payers. The countries thriving on hard capitalism no doubt support the negative rights of right to property and contract, and wipe their hands clean off the positive obligations that include ensuring food security, subsidized housing. All the organs of state (judiciary included) treat them with unusual apathy and indifference. The judiciary, especially, looks oblivious of its role to effectuate, if not enforce, these rights. The Constitution of India is especially sensitive to the socio-economic rights, as DPs have not been completely constitutionally de-recognized. The legislature could carry out large-scale agrarian reforms, abolish privy purses and nationalize industry only because of the group rights recognized in Part IV; but in the contemporary era of liberalization, the socialistic principles and socio-economic rights of the deprived masses have been forgotten to secure the trade, business , occupation and property of a few elite. In this scenario, when the state is failing to apply and implement them, the role of judiciary with respect to Part IV becomes extremely important. The primordial importance of these socio economic principles and judiciary can be understood by the following words of Dr. B.R Ambedkar, when he insisted on the use of the word strive in the language of Article 38 which mentions the governmental objective of an equitable distribution of material resources:

Prashant Bhushan, Supreme Court and PIL: Changing Perspectives under Liberalisation 39 EPW 194 (2004).

Page 6 of 10

We have used it because it is our intention that even when there are circumstances which prevent the Government, or which stand in the way of the Government giving effect to these directive principles, they shall, even under hard and unpropitious circumstances, always strives in the fulfilment of these directives. Otherwise it would be open for any Government to say that the circumstances are so bad, that the finances are so inadequate that we cannot even make an effort in the direction in which the Constitution asks us to go. [Constituent Assembly Debates, 19-11-1948] Thus, the enforceability of measures relating to social equality though incorporated in aspirational terms was never envisaged as being dependent only on the availability of state resources. In some instances, the Courts have privileged fundamental rights over directive principles while in others they have creatively drawn a harmonious relationship between the two. An example of this is the expansion of the conception of personal liberty under Article 21 of the Constitution which was traditionally invoked in the civil political context to check governmental abuses. The judicially expanded understanding of the same now includes several socio-economic entitlements for citizens which place positive obligations on the state. What is interesting is that the reading in of these socio-economic entitlements by judges has often directly referred to the language of provisions contained in the part dealing with directive principles. In this sense, judicial creativity has transformed the substantive character of the protection of life and liberty. Article 21 of the Constitution of India reads as follows: No person shall be deprived of his life or personal liberty except according to procedure established by law. The interpretation of this article in the early years of the Supreme Court was that personal liberty could be curtailed as long as there was a legal prescription for the same. In A.K Gopalans case, the Supreme Court had ruled that preventive detention by state agencies was permissible as long as it was provided for under a governmental measure (e.g. legislation or an ordinance) and the Court could not inquire into the fairness of such a measure. It was held that the words procedure established by law were different from the substantive due process guarantee provided under the 14th amendment to the US Constitution. It was also reasoned that the framers of the Indian Constitution consciously preferred the former expression over the latter. This narrow construction of Article 21 prevailed for several years.

IV.CAN JUDICIARY SAVE OR PROTECT GANDHIAN PRINCIPLE Our father of nation suggested some principles for our country which were to be followed as the guidelines but at this moment they stand nowhere. The death of 143 people after consuming toxic alcohols in 24 Parganas district of West Bengal speaks about the sad position of these principles in our country. No strict laws are made for it nor government of India are taking necessary steps to stop these activities. The only good consequences of allowing consuming of alcohol are that it increases tax collection of the government and increase in making more liquor barons such as Ponty Chadha. The most suitable criticism of directive principles of state policy is that these are not justiciable or enforceable it is very sad that these are taken only as moral principles but cannot be implemented. In a country where most of the people try to imitate actors and actresses of film, Delhi high court gave a good and noble decision to prohibit the display of tobacco product in film and television programme but the Supreme Court put an interim stay on the Delhi High Court's judgment.

Page 7 of 10

Union of India appealed a Delhi High Court decision finding certain sections of the Ministry of Health and Family Welfare's rules to implement India's tobacco control law unconstitutional in Mahesh Bhatt case.9This is how our judicial process works. Good administration in village panchayat is what all about written in article 40, but in practical life there are the good khap panchayats and the bad khap panchayats.The good ones ban female foeticide. The bad ones sanction honour killings. This is how justice granted to people at village level. The Supreme Court in a judgement termed Khap panchayats as kangaroo courts and declared them illegal. The Supreme Court ruling said that Khap panchayats are wholly illegal and have to be ruthlessly stamped out .A bench of justices Markandeya Katju and Gyan Sudha Mishra said in a judgement that the new trends of kangaroo courts, honour killings, khap panchayats in northern India and "katta" panchayats in Tamil Nadu were barbaric and illegal, the perpetrators of which required the harshest punishment. Terming honour killings as shameful, the apex court said, There is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but a barbaric and shameful murder. Atrocities with respect to personal lives of people, committed by brutal, feudal minded persons deserve harsh punishment. In his report to the Supreme Court Raju Ramachandaran, Senior Advocate appointed by the Court to assist it in PILs against Khap Panchayats has called for arrest of "self styled" decision makers and proactive action by the police to protect the fundamental rights of the people. It also asked for the recommendations being converted as directions to all States and the Union, till a law is enacted by the Parliament. V.SEPERATION OF JUDICIARY FROM EXECUTIVE

Why do we need Separate Judiciary? In order to promote accountability of government, hinder corruption and protect the fundamental freedoms of citizens from the will of the government of the day, it is essential to keep separate the Parliaments power to make laws, from the Executives power to administer laws, and from the Judiciarys power to hear and determine disputes according to the law. This separation is designed to protect the people from a concentration of power, and the ability of individuals or groups to manipulate government for personal gain and to ignore the will of the people A true separation of government powers is essential to ensure the accountability of government, hinder corruption and protect the fundamental freedoms of citizens against the will of the government. Each branch of government must be, and be seen to be, free to act as a check and balance on the other without fear or interference. There are three distinct activities in every government through which the will of the people are expressed. These are the legislative, executive and judicial functions of the government. Corresponding to these three activities are three organs of the government, namely the legislature, the executive and the judiciary. The legislative organ of the state makes laws, the executive enforces them and the judiciary applies them to the specific cases arising out of the breach of law. Each organ while performing its activities tends to interfere in the sphere of working of another functionary because a strict demarcation of functions is not possible in their dealings with the general public. Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these organs. The question which assumes significance over here is that what should be the relation among these three organs of the state. Whether there should be complete separation of powers or there should be co-ordination among them.

Union of India v. Mahesh Bhatt, SLP (Civil) 8429-8431, Supreme Court of India (2009).

Page 8 of 10

The executive has also resorted to them while justifying its (executive) actions. For instance, in the case of Champakam Doriarajan10, while defending the communal order, of the Madras government, the plea was taken that it was done to promote the interest of the weaker sections of the society as per Directive Principle of the State Policy provided in Article 46 of the constitution of India. It was the first major verdict regarding reservations in Republic of India. In its ruling the Supreme Court upheld the Madras High Court verdict, which in turn had stuck down the Communal Government Order (G.O) passed in 1927 in the Madras Presidency. In India, Judges of the Supreme Court and High Courts are appointed by the Executive. The appointing authority is the President of India, who acts on the advice of the Council of Ministers. But the President is required to consult the Chief Justice of Supreme Court at the time of making such appointments. This principle of nominating of the judges by the Executive from among the legal experts and practitioners is more acceptable than the other systems. The executive nomination of the judges is done with adequate safeguard. Part IV of the Indian Constitution deals with the topic of Separation of Judiciary from executive. The object of Article 50 of the Constitution was that there should be separation of the judiciary from the executive so that there may be an independent judiciary in which alone the public can have confidence. This view is also supported by the decision of the Supreme Court in State of Maharashtra v. Labour Law practitioner's Association and others, AIR 1998 SC 1233. Judiciary is respected by the people because we have maintained an independent judiciary whereas in countries under Dictatorship or Military Governance, there is not even semblance of judiciary what to say of Independent judiciary, e.g., in our neighbouring country and the judiciary is not respected in such countries by its own people because the Judges there merely follow the dictates of the rulers in such regimes and hence, do not inspire confidence of the public.

VI.RESULTS AND CONCLUSION In a survey conducted by World Bank in 2011 on enforcing contracts: Resolving commercial disputes through the courts India ranked 182 in enforcing contracts just behind a country called Timor and takes 1420 days during trial .An interesting fact is that cost of claim is 39.6% i.e., for an individual to get justice he has to bear an expense of 39.6% of his principal amount. It is a matter of deep concern for a country like India which is living in a dream of becoming superpower in 2020.Without rendering justice to the citizens of the country how can a country can grow. Judiciary is an indispensable part in a functioning of the state. This survey gives us the picture of how our judicial process is and where the article 39 stands in the present India. If judges devise strategies to enforce the directive principles, it amounts to an intrusion into the legislative and executive domain. It is reasoned that the articulation of newer fundamental rights is the legislatures task and that the judiciary should refrain from the same. Furthermore, it is posed that executive agencies are unfairly burdened by the costs associated with these positive obligations, especially keeping in mind that these obligations were enumerated as directive principles by the framers on account of practical considerations.

State of Madras v. Champakam Dorairajan (AIR 1951 SC 226)

Page 9 of 10

This criticism mirrors the familiar philosophy of judicial restraint when it comes to constitutional adjudication. It can be argued that the expansion of justiciability to include rights that are difficult to enforce takes away from the credibility of the judiciary in the long-run. The judicial inclusion of socio-economic objectives as fundamental rights can be criticised as an unviable textual exercise, which may have no bearing on ground-level conditions. In turn the unenforceability and inability of state agencies to protect such aspirational rights could have an adverse effect on public perceptions about the efficacy and legitimacy of the judiciary.

Page 10 of 10